Croatia joins the EU: Eight years in the making
Membership of the EU (1)
1. Important rights and obligations for the EU and for the Member States derive from the membership of the EU. All Member States are equal in that they enjoy the same privileges and have to fulfill the same obligations vis-à-vis each other and vis-à-vis the EU. Under the principle of equality, the EU is required to respect the national identity of the Member States and the essential functions of each Member State, in particular those which are intended to ensure the territorial integrity of the State, the maintenance of law and order and the safeguarding of national security.
Member States are required to co-operate sincerely with EU institutions and with each other and in the spirit of solidarity assist each other in extreme circumstances such as natural or man-made disasters, terrorist attacks and armed aggression.
2. Membership of the EU is conditional upon satisfying the conditions for admission which are set out in Article 49 TEU. Membership may be suspended when a Member State disregards the basic values on which the EU is founded and it may be terminated under Article 50 TEU when a Member State expresses its wish to withdraw from the EU. There are no provisions in the Treaties dealing with the loss of membership by expulsion. Under Public International Law the absence of an express provision means that the EU has no power to expel its members.
3. At the time of writing, 27 European States are members of the EU, three more States have the status of candidate States, i.e. States with whom accession negotiations have been commenced following a decision adopted by the Council, and there are six potential candidate States. Since the establishment of the Communities, there have been five rounds of enlargement of the EU. Each of them is analyzed in this chapter; and the enlargement policy towards states which are official candidates is discussed.
Introduction: the principle of equality, sincere co-operation and solidarity
The ToL contains a new provision emphasizing that the EU should respect the equality of Member States before the Treaties and their national identities (Article 4 (2) TEU). The principle of equality means that in the EU all Member States are equal in that they enjoy the same privileges and have to fulfill the same obligations vis-à-vis each other and vis-à-vis the EU. Unlike certain international organizations (for example, UNESCO), no special status is granted to any Member State of the EU.
Under the principle of equality, EU law applies to all Member States without discrimination. Any difference in treatment is based on objective considerations and proportionate to the objectives that the EU seeks to achieve. However, under EU law the principle of equality does not entail that each Member State has the same voting power. Under the ToL the principle normally applied in international intergovernmental organizations that each member has one vote is an exception. The vast majority of legislative acts are adopted by the Council acting by QMV, which is currently determined on the basis of “weight” given to each Member State and which from 2014 will be based on the double majority of Member States and population. However, this “inequality” is compensated by the fact that the Council, when it adopts EU legislation by QMV acts together with the EP, which is directly elected by EU citizens and therefore the democratic control of any such act is ensured.
The EU must respect the national identity of the Member States, including local and regional identity. It is also obliged to respect the essential functions of each Member State, in particular those which are intended to ensure the territorial integrity of the State, the maintenance of law and order and the safeguarding of national security. Article 4(2) TEU specifies that national security “remains the sole responsibility of each Member State”. Under Article 4(3) TEU, the Member States are required to sincerely co-operate with the EU and with each other. This duty is not new. It requires the Member States to take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations arising out of the Treaties or resulting from the acts of the EU institutions and to refrain from taking any measure which could jeopardize the attainment of the EU’s objectives. If a Member State fails to fulfill this duty the Commission may commence proceedings against it under Article 258 TFEU. An aspect of the duty of sincere co-operation (which must always have been implicit within that duty), requiring each Member State to assist others in carrying out tasks which flow from the Treaties, is specifically spelt out in Article 4(3) TEU.
The ToL expressly recognizes the principle of solidarity. Article 222 TFEU imposes a duty on a Member State and on the EU to assist a Member State in a situation where it is a victim of a terrorist attack or of a natural or man-made disaster. Further, the principle of solidarity is emphasized in the area of energy. Under Article 122(1) TFEU, if severe difficulties arise in the supply of certain products, in particular in the area of energy, the Council may, on a proposal from the Commission, acting in the spirit of solidarity, adopt appropriate measures. Another dimension of the principle of solidarity is the “mutual defense clause” inserted in Article 42(7) TEU. It states that if one Member State is a victim of armed aggression on its territory the others are obliged to provide it with help and assistance “by all means in their power” but in accordance with Article 51 of the UN Charter and subject to their commitments deriving from membership of NATO. Article 42(7) TEU entails those EU members, even if not members of NATO, are obliged to provide aid and assistance to a victim State.
It is important to note that:
A. Article 198 TFEU allows some Member States (Denmark, France, The Netherlands and the United Kingdom) to associate their overseas countries and territories (OCT) with the EU. These OCT are listed in Annex II to the Treaties (for example, some of the UK’s
OCT is Anguilla, the British Virgin Islands, the Cayman Islands and the Falklands Islands). Part IV of the TFEU Treaty applies to OCT only.
B. With respect to dependencies of EU Member States, various arrangements have been made. For example:
-To Greenland (a dependency of Denmark), which left the Communities in 1985, obviously the Treaties do not apply. Residents of Greenland, being Danish nationals, are, nevertheless, citizens of the EU but have no right to vote in elections to the EP. Protocol 34 “On Special Arrangements for Greenland” attached to the Treaties regulates the treatment in the EU of fisheries products originating in Greenland.
The situation of the Channel Islands and the Isle of Man, which are UK Crown dependencies, is regulated by Protocol 3 to the 1973 UK Treaty of Accession, which provides that only Community rules on the Common Customs Area and the Common External Tariff are applicable to them.
C. If a non-EU State has concluded an association agreement with the EU, for example on the basis of Article 217 TFEU, it remains outside the EU and therefore cannot be considered as a Member State.
Specific procedures applicable to membership of the EU: admission, suspension and withdrawal procedures
Three specific procedures apply to the membership of the EU. They are: the admission procedure, the suspension procedure and the withdrawal procedure.
The admission procedure
The requirements for admission are both substantive and formal. The substantive requirements were defined by the Copenhagen European Council Summit in June 1993. The ToL refers to them in Article 49 TEU. The formal requirements were changed by the ToL in that under Article 49 TEU the EP and national parliaments are to be notified of any application for EU membership submitted by a candidate state.
Substantive requirements
The Copenhagen Summit set out the following three substantive requirements that a candidate state must satisfy:
– Political requirements – a candidate state must be a state within the meaning of public international law, and must have stable institutions guaranteeing that the values on which the EU is founded are respected;
– Economic requirements – a candidate state must have a functioning market economy and be able to cope with competitive pressures and market forces within the EU;
-Legal requirements – a candidate state must be able to fulfill the obligations of EU membership, including acceptance of the objectives of political, economic and monetary union.
This entails acceptance of the entire body of EU law known as the “EU acquis” which before the entry into force of the ToL was referred to as the “acquis communautaire”. In addition, Article 49 TEU sets out a fourth substantive requirement for admission to the EU, which was not expressly mentioned by the Copenhagen Summit. It is geographical in that a candidate state must be a European state. Each of the four requirements is considered below.
Political requirements
These are defined in Article 2 TEU, which states that:
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” A liberal-democratic model of government of a candidate state ensuring respect for the civil, political, economic and social rights of its citizens is a vital element of membership of the EU.
Therefore, only democratic states which respect human rights can apply for membership. All Member States of the EU, candidate states and potential candidate states must be contracting parties to the ECHR to which, under Article 6(2) TEU the EU itself will accede in due course.
Economic requirements
The level of economic development is crucial for the admission of a candidate state to the EU.
Legal requirements
There are two legal requirements:
1. The first requirement is that a candidate state must be recognized as a state. Reference to the rules of public international law will clarify the legal status of the applying entity. In practice, since the Council must reach a unanimous decision regarding admission of a candidate state, if the latter is not recognized by any Member State, its application for admission will be rejected. So far, no irreconcilable problem has arisen in this area, although the candidacy of Cyprus posed delicate problems.
The Republic of Cyprus, which came into being on 16 August 1960, is, de facto, divided into two sectors: Greek and Turkish. Turkey invaded the Northern part of Cyprus in 1974, as a response to the military coup d’état organized by the Greek Cypriot right-wing paramilitary organization, EOKA-B, backed up by the ruling Greek military junta in Greece, which overturned the democratically elected government of President Makarios. At that time Turkey claimed it was invading Cyprus to uphold its obligation under the 1960 Treaty of Guarantee “to re-instate the constitution of the Republic of Cyprus”. In May 1983, the Rauf Denktash movement, which represents Turkish Cypriots, proclaimed the creation of the Turkish Republic of Northern Cyprus, recognized only by Turkey as an independent state.
The Republic of Cyprus has always been recognized by the international community as one country exercising sovereignty over the entire island. A political settlement between the Greek Cypriots and the Turkish Cypriots was not achieved before the Republic of Cyprus’s accession to the EU. The Annan Plan, named after former Secretary General of the United Nations, Kofi Annan, proposed the establishment of a new state, the United Cyprus Republic, covering the entire island (apart from the British Overseas Base area). This State would be a confederation made up of two component states – the Greek Cypriot State and the Turkish Cypriot State – joined together by a minimal federal governmental apparatus. On 24 April 2004 the Plan was put before the two communities in a referendum for approval. While the proposal received a 65 per cent favorable vote from the Turkish community, the Greek Cypriot community rejected it by over 75 per cent. As a result, the Republic of Cyprus became a Member of the EU on 1 May 2004, but the Turkish sector, or the Turkish Republic of Northern Cyprus being under military control of Turkey, did not, in fact, join the EU. However, Turkish Cypriots, being citizens of the Republic of Cyprus, are EU citizens, and are entitled to vote in elections to the EP.
There are many factors which make the reunification of the island of Cyprus likely, such as the ongoing negotiations which started in 2008 between the President of the Republic of Cyprus and the leader of the Turkish Cypriots concerning such important matters as governance and power sharing, property, and the economy. Further, the opening of accession negotiations between the EU and Turkey, will almost certainly force all interested parties to settle the problem of Cyprus peacefully.
2. The second requirement is the acceptance by a candidate state of the EU acquis. The EC acquis, according to the EP, constitutes a “criterion of global integration”. This term means, in the context of accession, the acceptance by a new Member State, without reservation, and from the commencement of its formal membership, of the body of common rights and obligations that bind all EU Member States together – in other words, a candidate country must accept all of EU law and its basic political principles. In respect of the fifth enlargement (May 2004) the acquis communautaire (now the EU acquis) contained more than 80,000 pages of EU law. The acquis is constantly evolving and comprises:
(a) The normative acquis, such as:
-The founding Treaties and their amendments;
-Acts enacted by the institutions, such as regulations, directives, decisions, recommendations and opinions (Article 288 TFEU, Article 161 EA);
-Other acts whose adoption is provided for by the Treaties (for example, rules of procedures, and so on);
-Measures adopted in the area of the external relations of the EU – such as agreements entered into by the EU with one or more third states, with international organizations, or with a national of a third state;
Other agreements the conclusion of which have been necessary to attain the objectives of the Treaties, for example, the Agreement of January 1957 establishing European Schools.
(b) The political acquis, such as declarations, resolutions, principles and guidelines, and so on, adopted by the European Council, or the Council. Also included are common agreements of the Member States regarding the development and strengthening of the EU.
(c) The judicial acquis, that is, the case law of the CJEU, which outlines the essential characteristics of the EU legal order (for example, direct effect, supremacy, unification, co-operation between the CJEU and national courts). It should, however, be noted that in the Acts of Accession there is no reference to specific case law for two reasons:
The rulings of the ECJ are “acts” of the EU institutions and thus already part of the EU acquis; and
It is unnecessary, and even dangerous, to “freeze” the case law of the CJEU for new members and, at the same time, allow its further development for older members. Indeed, the ECJ is not bound by its own decisions and it may always change the existing case law in order to promote new and essential objectives of the EU.
The acceptance of the EU acquis is a necessary condition for accession as it encompasses rights and obligations attached to the Union and its institutional framework. Candidate states must accept the acquis before they join the EU. Only in exceptional circumstances are exemptions, or derogations, granted to candidate states.
Geographical requirement
A candidate state must be a European state. This criterion can be explained by the fact that the EU wants to preserve the European identity of the Union. In the Declaration on European Identity of 14 December 1973, the heads of state or government described the essential elements of European identity as “principles of representative democracy, of the rule of law, of social justice – which is the ultimate goal of economic progress – and of respect for human rights”. The Commission, in its report on “Europe and the Challenge of Enlargement”, stated that: “The term ‘European’ has not been officially defined. It combines geographical, historical and cultural elements . . . and is subject to review. It is neither possible nor opportune to establish now the frontiers of the European Union, whose contours will be shaped over many years to come.”
At the time of writing, there are 50 states in Europe including the Vatican City. Some of them have had a short existence as states, having become independent as a result of the collapse of the Soviet Union and of the Yugoslav Federation, and through the division of Czechoslovakia into the Czech Republic and Slovakia.
Until now, only one non-European state has submitted an application for admission – Morocco in 1985 – which was rejected in 1987 by the Council as being incompatible with Article 237 EC Treaty [Article 49 TEU] because Morocco is not a European state.
Formal requirements
Article 49 TEU sets out the formal conditions for admission. This provision states that:
“Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The Applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the Applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.”
By virtue of Article 49 TEU a successful candidate state accedes to the EU, and therefore, by implication, to the Euratom. The following stages in the procedure can be identified.
Submission of a formal application by a candidate state
The first step in the procedure consists of submitting a formal application for admission, in the form of a letter signed by the minister for foreign affairs of a candidate state, to the Presidency of the Council of the European Union. The application must be notified to the EP and national parliaments. Subsequently, the Council decides whether to initiate negotiations with the applicant state. This can take a considerable time. The Commission becomes involved and, after investigations, presents a “preliminary opinion”, which either recommends the opening of negotiations or advises the Member States to wait until certain requirements are satisfied by an applicant state, or expresses its opposition to the admission. This opinion is not binding but is, nevertheless, of great influence. This influence is demonstrated by the fact that the Commission convinced the Member States to “freeze” the enlargement of the EC until the completion of the internal market.
The Council may take a position regarding the “preliminary opinion” of the Commission by adopting a “conclusion”, which may confirm or ignore the Commission’s opinion. In the case of Cyprus and Malta, the Council confirmed the favorable opinion of the Commission. However, in relation to Greek accession the Council ignored the negative opinion of the Commission.
Negotiations
Negotiations commence with the so-called “screening”, which consists of an analytical examination of the EU acquis. During that stage, which takes approximately one year, the Commission explains the acquis to the candidate state and, together with that state, evaluates its degree of preparedness. For the purposes of screening and the subsequent negotiations, the acquis is broken down into a number of chapters, each covering a specific policy area; for example, chapter 1 on the free movement of goods, chapter 2 on freedom of movement for workers, and so on. Thus, prior to actual, technical negotiations, the Commission establishes a “screening report” for each chapter of the acquis. In respect of each chapter, a candidate state submits its negotiating position, while the Commission prepares a Draft Common Position (DCP) for submission to the Council, which decides whether it can adopt a common position allowing opening of the chapters. Some negotiations have been lengthy and complex (for example, with Spain, Portugal and Eastern and Central European countries), others swift and smooth (for example, with Austria, Finland, Norway and Sweden). Until the conclusion of negotiations admission is uncertain.
End of negotiations
Once negotiations are concluded on all chapters, a draft Accession Treaty that incorporates the result of the negotiations is agreed between the Council and the candidate state. The Draft Accession Treaty is subsequently submitted to the Commission and the EP. The opinion of the Commission is not binding, but in practice, as the Commission is fully involved in negotiations, its opinion is always followed. Since the adoption of the SEA, the EP, within the consent procedure, must give its consent to the accession of a candidate state by majority vote cast by a majority of its members. The first time this occurred was in 1994 when the EP assented to the admission of Austria, Finland, Norway and Sweden. During the proceedings leading to membership of these states, the EP was kept informed by the Council and by the Commission of the progress in negotiations, and expressed its comments in several resolutions.
The Treaty of Accession is usually very short. In the case of the UK it consists of three articles stating that the UK accedes to the three Communities and accepts all Community law. However, the Act of Accession, which is always annexed to the Treaty of Accession, is a voluminous document, often accompanied by protocols, annexes and declarations. Apart from declarations, all these documents are legally binding.
Ratification of the Treaty of Accession
The last stage concerns the ratification of the Treaty of Accession by the Member States and the candidate state in conformity with respective national constitutional rules. Often, a candidate state submits the final acceptance of its future membership to its people. The Treaty of Accession enters into force only if all Member States ratify it. In the case of multiple candidatures, non-ratification by any one of the candidates does not affect the accession of others. In the case of Norway, its Government notified the EU that, as a result of a negative referendum, it would not ratify the Treaty of Accession. On 1 January 1995 the Council of the EU, including the then three new Member States, adopted a decision “adjusting the instruments concerning the accession of new Member States to the European Union”, and thus gave legal effect to the withdrawal of Norway from the process of accession. From the signature of the Treaty of Accession to the actual accession a future Member State is kept informed, and is consulted at all levels and in all areas, and is also involved in the EU decision-making procedures, although it still has no right to vote. Its presence ensures that the existing Member States are fully aware of any difficulties and opposition to new measures, while permitting the new Member State to participate in developments which are taking place within the EU.
The suspension procedure
Under Article 7(1) TEU, the Council, acting by a majority of four-fifths of its members (excluding the defaulting Member State), on the basis of a reasoned proposal by one-third of the Member States, by the EP or by the Commission, and after obtaining consent of the EP, may determine the existence of a “clear risk of a serious breach” by a Member State of values on which the EU is based and which are set out in Article 2 TEU, and subsequently may address a recommendation to the Member State concerned. The defaulting State has the right to present its case before the determination is made. The Council is required to regularly verify that the grounds on which such a determination was made continue to apply.
It appears that if there is no adequate response from the Member State concerned, the procedure, set out in Article 7(2) TEU, for suspension of a defaulting Member State’s rights deriving from EU membership will be used. Article 7(1) TEU contains an “early warning mechanism” and was introduced by the ToN.
There are two stages in the procedure under Article 7(2) TEU. The first relates to the determination of the existence of a serious and persistent infringement by a Member State of the fundamental values of the Union. The second relates to a decision either to suspend or not suspend EU membership rights, which may be taken by the European Council once the Council has determined the existence of a serious and persistent breach of Article 2 TEU.
First stage
Under Article 7(2) TEU the European Council (the defaulting Member State is excluded), acting unanimously on a proposal by one-third of the Member States or the Commission, and after obtaining the consent of the EP, may determine the existence of a serious and persistent breach by a Member State of the values on which the EU is founded. Such determination is made after giving an opportunity to the defaulting Member State to present its observations.
Second stage
Once the European Council has made the determination mentioned above, the Council may, acting by a qualified majority, decide to suspend certain rights of the defaulting Member State, including its right to vote in the Council. However, in applying Article 7(2) TEU the Council must take account of the possible consequences of such a suspension on the rights and obligations of natural and legal persons. During suspension, the defaulting Member State is bound to carry out its obligations flowing from the Treaties and the other Member States are bound to carry out their obligations to the defaulting Member State.
The Council, acting by a qualified majority vote, may decide subsequently to vary or terminate its decision, according to how the situation in the defaulting Member State evolves. The ToL introduced a possibility for a defaulting Member State to challenge a determination made under Article 7(1) or 7(2) TEU but confined it to procedural aspects of such determination and imposed a strict time limit, in that the Member State concerned is required to bring proceedings before the ECJ within one month from the date of the adoption of an act by the Council or the European Council determining a breach of Article 7(1) or (2) TFEU. Under Article 267 TFEU, the ECJ is required to give a ruling within one month from the date of the commencement of the proceedings.
Article 7 of the TEU does not specify what would happen if a defaulting Member State were to continue violating Article 2 TEU in defiance of a decision adopted under Article 7(2) TEU. It is submitted that in such a situation general principles of public international law will apply to deal with a defaulting Member State.
So far, neither Article 7(1) nor Article 7(2) TEU has been used. However, the EU imposed diplomatic sanctions against Austria in February 2000, to express its condemnation of the election of Jörg Haider (the leader of the extreme right Austrian Freedom Party, known for his racist and xenophobic policies) as a government minister when his party, as a result of the 2000 election, joined a conservative-led Austrian Government. The sanctions consisted of freezing bilateral relations between Austria and 14 other Member States, and the suspension of all contacts at an inter-governmental level between Austria and the EU. The problem was settled when Mr Haider resigned from the Austrian Government, although his party did not follow his lead. Article 7 TEU could not have been used because Austria had not actually breached Article 7(1) TEU.
The withdrawal procedure
The ToL provides for voluntary withdrawal from the EU, which may take place at any time. A Member State that no longer wishes to be a member of the EU must notify the European Council of its desire to leave the EU. Following notification, the procedure set out in Article 50 TEU will be applied, consisting of conducting negotiations between the EU and the Member State concerned with a view to concluding a withdrawal agreement, specifying the arrangements for withdrawal and regulating the future relationship between the EU and the Member State concerned. The Council of the EU will conclude this agreement on behalf of the EU, acting by qualified majority voting (the Member State concerned is not allowed to vote), and after obtaining the consent of the EP.
The Member State concerned will cease to be a member of the EU at the date specified in the withdrawal agreement or, failing any agreement, two years after the notification to the European Council of its intention to withdraw unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. Therefore, the withdrawal may enter into force even if the EU fails to give its consent.
The Member State concerned may always change its mind, or even rejoin the EU following the normal accession procedure contained in Article 49 TEU. Until now no Member State has expressed a serious desire to leave the EU. The Community has twice dealt with a question of Member State secession, that is, when a part of an existing territory of a Member State has acquired political sovereignty or autonomy. The first case concerns Greenland, which is the world’s largest island that is not also considered a continent, and was an integral part of the Kingdom of Denmark at the time of the latter’s accession to the Communities. No opposition was expressed to Greenland’s subsequent withdrawal. The circumstances were as follows. In 1979 the government of Denmark granted home rule to Greenland; as a result Greenland remains under the Danish Crown and its inhabitants are still considered to be Danish citizens. The island enjoys autonomy in all matters but constitutional affairs, foreign relations and defense. In 1985 the people of Greenland decided in a referendum to withdraw from the European Communities, and negotiations were conducted between the Kingdom of Denmark and other Member States. As a result, the specific provisions for Greenland are set out in the Protocol on special arrangements for Greenland, annexed to the EC Treaty.
The second case concerns St Pierre and the Miquelon Islands. Their secession was considered as an internal matter for France and the Communities merely received notification from the French authorities.
